Professional Documents
Culture Documents
*M.K. Vyas
(A) Introduction
Since the dawn of human civilization, in the whole range of our legal,
political and moral theory, the notion of justice has always occupied a
central place. Although any attempt to define the term precisely,
scientifically and exhaustively has presented a baffling problem to scholars
of all hues. Consequently on account of its multidimensionality, its nature
and meaning has always been a dynamic affair. Besides, the problem of
definition of justice is beset with the problem of its normative as well as
empirical connotations. While in the normative sense it implies the idea of
joining or fitting the idea of a bond or tie 1, in an empirical context, it has its
relation with the concept of positive law with the result that law and justice
becomes sister concepts.
It is owing to this affirmation that the fundamental purpose of law is
said to be the quest for justice which is to be administered without passion
as when it (passion) comes at the door, justice flies out of the window.2
However, notwithstanding the problem of defining the term Justice,
precisely, scientifically and exhaustively, it is submitted that "Jurisprudence
can not escape considering justice since justice is ideally the matter of
law. But what if justice can not be known? Justice appears to be
overburdened idea. Sometimes it is reduced to a question of technique: it
is thereby posed as the problem of what will guide the techniques of
constructing social order. At other times it appears as a problem of
legitimacy or put another way as an answer to the question of what will
provide a rational framework. for judging the adequacy of the regulation of
human relations."3
1.
Earnest Barker. Principles of Social and Political Theory, London: Oxford University
Press, 1967, p. 102.
C.K. Allen. Aspects of Justice, London, Stevens & Sons, 1955, p. 34
Wayne Morrison. Jurisprudence From the Greeks to post modernism, Lawman (India)
Pvt. Ltd., New Delhi, Footnote 1 at p. 383
2.
3.
their fruits and not by their ideality, i.e., by their actual effects on the
happiness of the people and not by their conformity to the theories of
natural rights or absolute justice. Thus this theory is based on the
psychological doctrine of hedonism which proceeds on the assumption that
man is a sentient being, a creature of feeling and sensibility. The principle
of utility or the greatest happiness of the greatest number is the measuring
rod by which utilitarian measure and evaluate the public policies and
legislative enactments of governments. The state is a necessity for the
promotion of the greatest happiness of the greatest number and it is a
means, not an end in itself.
4.
5.
6.
7.
H.L.A. Hart. Essays on Bentham, Jurisprudence and Political Theory, Clarandon Press,
Oxford, 1982, p. 51
Anarchical Fallacies, Vol. II, pt. VIII
Jermey Bentham. Morals and Legislation, pp. 125-126
Whereas Mill, although taking the position that the standard of justice
should be grounded on utility, believed that the origin of the sense of justice
must be sought in two sentiments other than utility namely, the impulse of
self defense and feeling of sympathy. 8 Differently expressed the feeling of
justice is the urge to retaliate for a wrong, placed on a generalized basis. 9
This feeling rebels against an injury, not solely for personal reasons, but
also because it hurts other members of society with whom we sympathize
and identify ourselves. The sense of justice, Mill pointed out, encompasses
all those moral requirements, which are most essential for the well being of
15.
16.
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18.
(iii)
freedom of speech & association the right to vote and stand for public
office liberty of conscience & freedom of thought, freedom of the person
and the right to hold personal property, freedom from arbitrary arrest, which
every system must respect. These are rights that may not be sacrificed to
increase the aggregate welfare level.
Thirdly, Rawls conception of benefits is different from utilitarianism
which is concerned with welfare. Rawls by contrast defines benefits in
terms of "primary goods": liberty and opportunity, income and wealth and
the bases of self respect. These need not be considered desirable in
themselves but they give persons the opportunities rationally to further
their own autonomy.
The above discussion has revealed that Rawls seems to lay down a
contractarian theory of justice in which participation in the understanding of
justice as fairness makes a type of government called constitutional
democracy. The model which Rawls proposes as satisfying has two
Rawls: Distributive Justice in peterlaslett & W.G. Runciman (ed.) Philosophy, Politics &
Society III Series, Oxford, 1967 p. 71
Benzamin Cardozo: The nature of Judicial Process, Yale Univ. press, pp. 149-52
Supra 3 at pp. 392-393
Supra 3 at pp. 396
27.
28.
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30.
31.
32.
The communitarians argue that one can not define the right prior to
the good, since it is only through our participation in a community which
defines the good that we can have a sense of what the right is and attain a
living conception of justice, outside community there is no god and no
right.33 Communitarian therefore assert it is only within a specific
community, defining itself by the good that it postulates that an individual
with his rights can exist. It appears necessary for liberals to specify that the
search for justice is partly a question of actively working for and
intellectually defending particular images of political community.
They (i.e., communitarians) rightfully assert that "Justice is not a
philosophical conception but it is an existential goal."34
Ibid
Id. at p. 414
H.L.A. Hart. Supra 5 at pp. 25-26
(D) Conclusion
The above discussion of various approaches about the notion of
justice has clearly revealed that we face an irresoluble pluralism of
ideologies. If the structure of legalism embodies one dominant set of
ideologies it will appear unjust from another perspective .
Kelson36 has rightly concluded that there can not be a formal science
of justice, since even if a theory of justice were logically constructed it
would be based on emotive premises. It is not possible to identify in a
scientific way the supreme values that a just order of social life should
attempt to promote one person may regard the advancement of individual
autonomy as the foremost aim of legal ordering another person may argue
that law-makers should promote the goal of equality. Yet another may claim
that security is the overriding interest and he is willing to sacrifice equality
and freedom for the fullest resolution of this value. Therefore, it has rightly
36.